Pending - Other Pending
Personal Injury - Motor Vehicle
GEORGINA T. RIZK
EGS TRUCKING INC.
VASO EXPRESS INC
EGS TRUCKING INC.
KARAPETYAN ARMAN FAC
HUTCHINSON ROBERT BRUCE ESQ.
MAGILLIGAN DONALD JAMES ESQ.
CANTER DAVID H ESQ.
BERGSTEN ROBERT TROY ESQ.
JENKINS MICHAEL EDWIN ESQ.
HOLM ESTHER PARDO ESQ.
2/23/2018: STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
4/2/2018: NOTICE OF SETTLEMENT
4/2/2018: APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT;DECLARATION OF MARY M.CAMPO
4/24/2018: ORDER FOR DETERMINATION OF GOOD FAITH SETTLEMENT
6/7/2018: REQUEST FOR DISMISSAL
12/17/2018: Request for Refund / Order
12/21/2018: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)
2/22/2019: Motion for Order
3/6/2019: Motion for Order
3/7/2019: Ex Parte Application
3/7/2019: Minute Order
3/12/2019: Notice of Ruling
3/15/2019: Association of Attorney
Docketat 1:30 PM in Department 2, Georgina T. Rizk, Presiding; Hearing on Motion to Augment Record (Augment Plaintiff's Expert Witness List; and Extend The Cutoff Date For Completion of Discovery...[for Argument]) - Held[+] Read More [-] Read Less
DocketMinute Order ( (Argument on Defendant Navistar, Inc.'s Motion to Augment Reco...)); Filed by Clerk[+] Read More [-] Read Less
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore ([Jennifer Tat (CSR 13773)]); Filed by NAVISTAR, INC (Defendant)[+] Read More [-] Read Less
Docketat 1:30 PM in Department 2, Georgina T. Rizk, Presiding; Hearing on Motion to Augment Record (Augment Plaintiff's Expert Witness List; and Extend The Cutoff Date For Completion of Discovery) - Not Held - Continued - Court's Motion[+] Read More [-] Read Less
DocketMinute Order ( (Hearing on Plaintiff's Motion for Leave to Augment Plaintiff'...)); Filed by Clerk[+] Read More [-] Read Less
DocketProof of Service by Substituted Service; Filed by NAVISTAR, INC (Cross-Complainant)[+] Read More [-] Read Less
DocketPlaintiff's Reply Brief In Support Of Motion for Leave to Augment Expert Witness List and to Extend Discovery Cutoff; Filed by ABIGAIL BOLDE (Plaintiff)[+] Read More [-] Read Less
DocketRequest for Refund / Order; Filed by NAVISTAR, INC (Defendant)[+] Read More [-] Read Less
DocketDEFENDANT, NAVISTAR, INC.'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AUGMENT EXPERT WITNESS LIST AND MOTION TO EXTEND DISCOVERY CUTOFF; Filed by NAVISTAR, INC (Cross-Complainant)[+] Read More [-] Read Less
Docketat 1:30 PM in Department 2, Georgina T. Rizk, Presiding; Hearing on Motion to Compel (the Deposition of Gegham Tovmasyan and Motion for Monetary Sanctions in the Sum of $5,105.47;) - Not Held - Taken Off Calendar by Party[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by ABIGAIL BOLDE (Plaintiff)[+] Read More [-] Read Less
DocketANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES; REQUEST FOR JURY TRIAL[+] Read More [-] Read Less
DocketAnswer; Filed by ARMAN (FAC) KARAPETYAN (Defendant); VASO EXPRESS INC (Defendant)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketFirst Amended Complaint; Filed by ABIGAIL BOLDE (Plaintiff)[+] Read More [-] Read Less
DocketSummons; Filed by ABIGAIL BOLDE (Plaintiff)[+] Read More [-] Read Less
DocketFIRST AMENDED COMPLAINT FOR DAMAGES: (1) NEGLIGENCE; ETC[+] Read More [-] Read Less
DocketCOMPLAINT FOR DAMAGES: (1) NEGLIGENCE ;ETC[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketComplaint; Filed by ABIGAIL BOLDE (Plaintiff)[+] Read More [-] Read Less
Case Number: ****4305 Hearing Date: August 18, 2020 Dept: 29
Bolde v. Navistar, Inc., et al.
MOTION TO QUASH SUBPOENA
Cross-Defendant and Cross-Complainant EGS Trucking, Inc.’s Motion to Quash Navistar Trucking, Inc.’s Third Party Subpoena to the Law Offices of Hemar, Ousso & Heald is GRANTED IN PART and DENIED IN PART. The motion is GRANTED to the extent the subpoena seeks the production of EGS Trucking, Inc.’s tax returns, which are privileged. The motion is otherwise DENIED.
In the first amended complaint, Plaintiff Abigail Bolde alleges that on December 9, 2016, she was driving on the freeway when a seven-foot portion of a truck’s exhaust pipe broke off and flew through Plaintiff’s front windshield, striking her on the head and causing severe injuries.
The complaint alleges that the tractor was manufactured by Defendant and Cross Complainant Navistar Inc., owned by (now former) Defendant Vaso Express, Inc., and driven by Defendant Arman Karapetyan. Plaintiff alleges negligence and strict liability claims against Navistar. Navistar filed a cross-complaint against EGS Trucking, Inc., claiming, among other things, that EGS was the owner of the truck at the time of the incident and that Vaso Express’s owner, Armen Stepanyants, was acting as an agent of EGS in dealings regarding the truck.
EGS denies that it was the owner of the truck or that Stepanyants ever acted as its agent. EGS claims that any representations that Stepanyants was acting on its behalf were made without EGS’s knowledge or authority.
On January 24, 2020, Navistar issued a trial subpoena to the Law Offices of Hemar, Rousso & Heald, calling for the production at trial of, among other things, EGS’s tax returns. Navistar claims that EGS purchased the truck in August 2015 and was subsequently sued by the lender for failing to make payments for the truck. A judgment was entered against EGS for the amount owed on the loan and for possession of the truck.
Hemar, Rousso & Heald represented the lender in connection with that suit. After judgment was entered, Stepanyants purportedly negotiated with Hemar, Rousso & Heald regarding the debt. He sent the firm a letter containing a settlement offer and stating: “At this point, EGS Trucking is on the verge of filing a bankruptcy. As you have already seen based on the tax returns sent to you, the business is not producing any income and for that reason we are offering settlements to all our debtors.”
Navistar has issued a trial subpoena for the tax returns. Navistar claims that the records are relevant to establishing that Stepanyants was acting as the agent of EGS.
EGS moves to quash the subpoena on two grounds: first, the production date was noticed to occur after the discovery cut-off date that was in effect at the time the subpoena was issued; and second, the tax returns are privileged.
With respect to the first point, the subpoena is a trial subpoena, not a deposition subpoena, so the discovery cut off date is irrelevant. In any event, as Navistar argues in opposition to the motion, after the subpoena was issued, the trial date was continued and discovery was reopened on the limited issue of whether EGS owned the truck. EGS’s argument regarding the timing of the subpoena fails.
With respect to the second argument, the California Supreme Court has recognized a privilege against the forced disclosure of tax returns, including in response to requests for production. Schaubel v. Superior Court (1993) 5 Cal. 4th 704, 720. The privilege has been implemented to “facilitate tax enforcement by encouraging a taxpayer to make full and truthful declarations in his return, without fear that his statements will be revealed or used against him for other purposes.” Id. at 719 (quoting from a statute from which the privilege was derived.)
“The privilege is not absolute.” Id. at 720. Instead, it is “waived or does not apply in three situations: (1) there is an intentional relinquishment; (2) the gravamen of the lawsuit is so inconsistent with the continued assertion of the taxpayer's privilege as to compel the conclusion that the privilege has in fact been waived; or (3) a public policy greater than that of confidentiality of tax returns is involved.” Id. at 721 (citations and internal quotation marks and brackets omitted).
Navistar argues that each of these exceptions apply. Navistar argues that EGS “intentionally relinquished” the tax return privilege by providing the returns to the lender in negotiations regarding the debt. Navistar’s argument fails. In Fortunato v. Superior Court (2003) 114 Cal. App. 4th 475, the Court held that a taxpayer does not waive the privilege simply by providing its tax returns to a lender in order to obtain a loan. The Court reasoned that it is “impossible to participate in the economic life of contemporary society” without providing tax returns to banks and other lenders, and that requiring the production of tax returns in litigation simply because they have been provided to a lender would undermine the purpose of the privilege.
Here, as in Fortunato, the tax returns were provided to a lender during negotiations regarding a loan. It is true that in Fortunato, the tax returns were provided during the initiation of the loan while here they were provided after the debtor had defaulted, but the Court does not find that to be a meaningful distinction. Navistar argues that EGS or Stepanyants “voluntarily” provided the documents to lender’s counsel, but providing returns to negotiate relief from a judgment after defaulting on a loan is no more “voluntary” than providing them in attempting to obtain a loan in the first instance is. The Court concludes that providing the documents to the lender did not effect a waiver of privilege.
Navistar also argues that the “gravamen of the lawsuit is so inconsistent with the continued assertion of the taxpayer’s privilege as to compel the conclusion that the privilege has been waived.” This argument has no merit. There is nothing inconsistent with EGS’s assertion that it did not own the truck and the continued assertion of the privilege. In other words, EGS’s assertion that it did not own the truck is not akin to a waiver of the privilege.
This case is wholly distinguishable from cases where courts have found that the gravamen is inconsistent with the assertion of privilege. Wilson v. Superior Court (1976) 63 Cal. App. 3d 825, 830 is the leading case. In that case, the plaintiff sued her business advisors, arguing that due to the defendants’ negligent and improper advice regarding the sale of her property, she was unable to take advantage of tax benefits to which she would otherwise have been entitled. The Court of Appeal concluded, among other things, that the “establishment of all the essential elements of plaintiff’s case will be impossible without proof of statements and computations in her tax returns.” In other words, in order to prove her case, plaintiff herself needed to rely on the content of the tax returns and the computations reflected therein. The Court concluded: “To permit plaintiff to produce evidence of the contents of those returns (but see Evid. Code, ; 1500 et seq.) while successfully resisting their disclosure on grounds of privilege would be manifestly unfair to defendants.” Id. The Court thus held that “plaintiff can either maintain her lawsuit or the confidentiality of her returns, but not both.” Id.
Navistar’s argument, by contrast, is that the tax returns are merely relevant to an issue that is unrelated to the contents of the returns. The mere relevance of the materials is not enough to fall within this exception.
Navistar finally argues that there is a strong public policy that outweighs the privilege here, but the Court disagrees. Navistar has not identified any relevant public policy.
Finally, Navistar’s arguments regarding the relevance of the protected contents of the returns are weak. Navistar is correct that if EGS’s returns actually stated that the truck was EGS’s asset, that fact would be highly relevant. But Navistar has provided no evidence or argument for why it would expect an owner in EGS's purported position to specifically identify an asset such as a years-old tractor trailer in the business’s tax return. Navistar does not, for example, identify the line or form on which the asset would typically be listed or provide any authority for the proposition that the asset would likely be listed. Navistar’s argument amounts to pure speculation or unsupported assertion that if EGS were the truck’s owner, it would be shown somewhere in the returns. But, ultimately, for the reasons previously stated, Navistar’s argument would fail even if it had made a persuasive showing that an owner of such an asset would be required to list it with particularity on the tax return for the year in question (presumably, 2017). That is because Navistar has not shown that any exception to the privilege would apply, even for highly relevant information.
Navistar’s stronger position as to relevance is that Stepanyants’s mere possession and use of EGS’s tax returns tend to show that Stepanyants was acting as EGS’s agent in negotiations with the lender. But Navistar does not require the privileged contents of the returns to make that showing.
For the foregoing reasons, the Court GRANTS the motion to quash to the extent the subpoena seeks the production of EGS’s tax returns. The motion to quash is otherwise DENIED.
Moving party is ordered to give notice, including notice to the subpoena recipient.
MOTION TO COMPEL FURTHER RESPONSES
Three Motions by Cross-Complainant/Cross-Defendant EGS, Trucking Inc. to Compel Further Responses by Navistar, Inc. to Form Interrogatories, Set Two; Special Interrogatories, Set One; and Requests for Admission, Set One; are GRANTED. Defendant, Navistar, Inc. is ordered to provide further, verified responses within 15 days from notice of this order.
On May 2, 2019, the Court permitted Navistar, Inc. to file its cross-complaint against EGS Trucking, Inc. for indemnity, contribution and declaratory relief. On June 24, 2019, EGS filed its cross-complaint against Navistar.
The final status conference was set for February 14, 2020. On that date, EGS brought an ex parte application to continue the final status conference and trial. In the written application, EGS also asked that discovery be re-opened for the limited purpose of allowing Cross-Defendant to depose Armen Stepanyants regarding new evidence disclosed by Navistar. The Court held a hearing on the application, and counsel for all parties, including Navistar, were present. No party objected a lack of sufficient notice on the request to reopen discovery. The Court discussed EGS’s request to reopen discovery for a limited purpose, and based on the discussion with the parties, the Court granted the motion to continue the final status conference and trial and ordered that discovery be reopened for the limited purpose of determining whether EGS Trucking is the owner of the truck at issue. Navistar did not object to the Court’s ruling.
On February 24, 2020, EGS Trucking provided written notice of the Court’s ruling. Navistar did not seek reconsideration of the Court’s ruling and did not make any motion or application seeking to modify or amend the minutes on the grounds that they did not accurately reflect the Court’s oral ruling.
On March 10, 2020, Navistar filed an opposition to EGS Trucking, Inc.’s motion to quash Navistar’s subpoena to Hemar, Rousso & Heald. In that opposition, Navistar admitted that at the ex parte hearing “[t]he Court . . . continued the discovery cut off ‘for the limited purpose of determining if EGS Trucking, Inc. is the owner of the truck which is the subject of the instant litigation’.”
On February 21, 2020, EGS served the Requests for Admission, Form Interrogatory, and Special Interrogatories that are at issue here. On February 28, 2020, Navistar objected to the discovery on the grounds that it violated the discovery cut-off.
On April 10, 2020, EGS filed the motions to compel further, arguing each request was relevant to the determination of the issue of whether EGS is the owner of the truck and is thus permitted pursuant to the Court’s February 14, 2020 order. EGS filed a separate statement that addressed each request.
In opposition, Navistar argues that in EGS’s written ex parte application, EGS sought only to reopen discovery to take the deposition of Stepanyants, and that the Court’s order granting the ex parte is “overly broad.” But again, Navistar participated in the hearing at which the Court made the oral ruling regarding the scope of the re-opened discovery and Navistar has not moved for reconsideration or modification of the Court’s order, despite having received formal, written notice of it close to six months ago. Navistar’s description of the Court’s order in its March 10, 2020 opposition to the motion to quash demonstrates that it was aware of the content of the ruling since at least that date.
Navistar did not file a separate statement and does not argue that any request is outside the scope of the Court’s February 14, 2020 order that discovery will be reopened on the issue of whether EGS owned the truck at issue. Instead, as noted, Navistar simply argues that the Court’s order was overly broad and that discovery has only been reopened for the purpose of taking Stepanyants’ deposition. Since Navistar does not present any argument on the issue, the Court does not go through the requests one by one to determine whether any individual request is outside the scope of the Court’s order.
Moving party is ordered to give notice.
Case Number: ****4305 Hearing Date: March 11, 2020 Dept: 29
Bolde v. Navistar, Inc. et al.
Defendant Navistar, Inc.’s Motion to Bifurcate Liability from Damages at Trial is DENIED.
Code of Civil Procedure section 598 provides that the Court may order that the trial of any issue shall precede the trial of any other issue “when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby.” Section 1048(b) provides: “The court, in further of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial on any cause of action . . . or of any separate issue or any number of causes of action or issues . . . .”
The Court concludes that judicial economy will not be served by ordering separate trials on liability and damages. In assigning personal injury cases for trial, Department 1 acts as a master calendar court. In the master calendar context, ordering bifurcation presents logistical challenges for the Court and results in judicial inefficiency. From the Court’s perspective, it is more efficient to try liability and damages in a single trial. The Court is satisfied, based on Plaintiff’s showing, that ordering bifurcation would prolong the trial and result in inefficiency. Navistar has not presented any facts that would outweigh the inefficiency and logistical burden that bifurcation would impose on the Court.
Navistar also argues that it will be unduly prejudiced if evidence regarding liability and damages is presented in a single trial. Navistar previously moved for bifurcation of liability and damages, making essentially the same argument that it makes here. In the previous motion, Navistar argued that “bifurcation will promote the ends of justice by protecting Navistar from undue prejudice” and that “Plaintiff will attempt to draw on the sympathy of the fact finder by blurring the issues of liability and damages in light of Plaintiff’s undoubtedly severe injuries and the effect that these injuries have had on her life.” (Memo of P’s and A’s in Support of Previous Motion to Bifurcate at p. 8). Navistar further argued that “[t]he very nature of this anticipated evidence will necessarily play to emotions of the jurors and likely cause them to focus on the tragedy of Plaintiff’s condition as opposed to the facts and evidence related to liability.” (Id.) The Court nonetheless denied the motion. Navistar has not presented any new or different facts or circumstances regarding potential prejudice that was not already considered in connection with the previous motion. The Court does not conclude that any potential prejudice to Navistar justifies bifurcation here. Any risk of undue prejudice can be mitigated through jury instructions.
The Court has considered all of the evidence presented by all of the parties, and in the exercise of its discretion, declines to order separate trials on liability and damages under sections 598 or 1048(b). While bifurcation is appropriate in some cases, the Court exercises its discretion to deny bifurcation here.
Moving party is ordered to give notice.
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